NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Gelita USA Inc. and United Food and Commercial Workers International
April 30, 2008
DECISION, ORDER, AND DIRECTION1
By Chairman Schaumber and Member Liebman
This case involves several unfair labor practices that the Respondent, Gelita USA Inc. (Gelita), is alleged to have committed during a union organizing campaign among its laboratory employees in the spring of 2007. As explained below, we agree with the judge that Gelita violated Section 8(a)(1) of the Act by promising benefits to unit employees, interrogating two employees about their union sympathies, and telling employees that, in the event of an economic strike, they would have no job protection if replaced. We also agree with the judge, for the reasons stated in his decision, that Gelita violated Section 8(a)(3) by accelerating the termination of Heidi Young2 and that Young was an eligible voter whose ballot should be opened and counted.3
1. We concur with
the judge’s finding that, under the facts presented here, Supervisor Dean Wood
unlawfully promised a benefit to employees by indicating that he was going to
remedy a staffing problem in the laboratory.
During a meeting with employees on the day before the election, Wood
stated that he knew the laboratory was understaffed, and that his first goal
would be to get the lab staffed because there was a lot of work and not a lot
of people. Wood made this statement in
conjunction with a request to employees to reject the Union, and there is no
evidence that Gelita had been planning to remedy the understaffing irrespective
of the
Gelita argues that Wood’s statement did not constitute a
promise of a benefit because there is no evidence that employees had complained
about the staffing levels in the laboratory, and therefore there was no employee
complaint to remedy. We find no merit in
this argument. Although the record
contains no specific employee complaints, it is apparent from Wood’s comments
that understaffing in the laboratory was a problem that directly affected
employees, and that Gelita was aware of the problem. Moreover, it is not critical that the employees
themselves had not complained about the staffing; the question here is whether
Wood promised employees a benefit in exchange for rejecting the
2. In adopting the
judge’s finding that Human Resources Consultant Kim Dellinger unlawfully interrogated
employees Heidi Young and Vicki Claassen, we reject Gelita’s contention that
the exchange between Dellinger and the employees was a casual conversation
among persons who were friendly to each other.
There is no evidence that Dellinger had a friendly relationship with
either Young or Claassen, or that the employees had been willing to talk to
Dellinger about their union sympathies.
Rather, the evidence indicates that both Young and Claassen were
reluctant to talk about the
3. As stated above,
we agree with the judge that Gelita unlawfully told employees that economic
strikers would have no job protection if replaced. River’s
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent, Gelita
USA Inc., Sergeant Bluff,
It is further ordered that Case 18–RC–17500 be severed from Case 18–CA–18406 and remanded to the Regional Director for Region 18 for action consistent with the Direction below.
DIRECTION
IT IS DIRECTED that the Regional Director for Region 18 shall, within 14 days from the date of this decision, open and count the ballot of Heidi Young, and then prepare and serve on the parties a revised tally.
If the revised tally reveals that the Petitioner has received
a majority of the valid ballots cast, the Regional Director shall issue a
certification of representative. If however,
the revised tally shows that the Petitioner has not received a majority of the
valid ballots cast,
the election must be set aside and a new election held at such time as the
Regional Director deems appropriate.
Dated,
______________________________________
Peter C. Schaumber, Chairman
______________________________________
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
Eric W. Tiritilli, Esq., for the Company.2
Jay M. Smith, Esq., for the
DECISION
Statement of the Case
William N. Cates,
Administrative Law Judge. This unfair
labor practice case involves interference with employee rights and an acceleration
of the designated resignation date of an employee from June 6, 2007 to May 27,
2007. The Representation case involves
Objections filed by the Union/Petitioner on June 6, 2007, to conduct affecting
the results of a National Labor Relations Board (Board) conducted election4 held on May 31, 2007, among certain
employees5 of the Company/Employer at
its Sergeant Bluff,
On August 22, 2007, the Regional Director for Region 18 of
the Board issued a Report on Challenged Ballot and Objections, Order Directing
Hearing, Order Consolidating Cases, and Notice of Hearing. The Regional Director noted the acceleration
of Young’s termination is the subject of an unfair labor practice allegation in
the unfair labor practice case and other of Petitioner’s objections are
co-extensive with certain other unfair labor practice allegations set forth in
the unfair labor practice complaint.
Accordingly, the Regional Director ordered the cases consolidated for trial. I heard these cases in trial in
The unfair labor practice case originates from a charge,
filed by United Food and Commercial Workers International Union, Local 1142 (the
The complaint, as amended, alleges the Company, during the month of May 2007, interfered with, restrained and coerced its employees in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act (the Act) thus violating Section 8(a)(1) of the Act. Specifically, it is alleged the Company violated Section 8(a)(1) of the Act, during the specified time, by its supervisors and/or agents, interrogating employees regarding how they intended to vote in the upcoming union election; promising employees it would be able to resolve any problems the employees had with their current working conditions if they abandoned their pursuit of Union representation; and, in a posted notice to its laboratory employees threatened they would receive no job protection if they engaged in an economic strike on behalf of the Union should the employees select the Union to represent them. It is also specifically alleged the Company violated Section 8(a)(3) and (1) of the Act by on or about May 27, 2007, accelerating the termination of employee Heidi Young (Young), who had given notice of her intent to resign her employment with the Company effective June 6, 2007.
The Company, in a timely filed answer to the complaint, denied having violated the Act in any manner alleged in the complaint.
The parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. I carefully observed the demeanor of the witnesses as they testified. I have studied the whole record, the post trial briefs, and the authorities cited therein. Based on more detailed findings and analysis below, I conclude and find the Company violated the Act substantially as alleged in the complaint.
Findings of Fact
i.
jurisdiction, labor organization status, and
supervisor/agency status
The Company is a
The parties admit, and I find, the
It is admitted that Company Managing Director Rob Mayberry (Director Mayberry), Human Resources Vice President Jeff Tolsma (VP Tolsma), Human Resources Consultant Kim Dellinger (Consultant Dellinger) and Laboratory Manager Dean Wood (Supervisor Wood) are supervisors and agents of the Company within the meaning of Section 2(11) and (13) of the Act.
ii. alleged
unfair labor practices
A. Background
The Company is a German-owned worldwide organization. The only facility involved herein is the
Sergeant Bluff,
Laboratory Technician Desiree McCaslen (McCaslen) and a
coworker contacted a representative of the
B. The Posted Notice
1. Complaint allegation
It is alleged at paragraph 5(a) of the complaint that
during the month of May 2007, the Company in a posted notice in the laboratory
department, threatened employees they would receive no job protection if they
engaged in an economic strike on behalf of the Union, should employees select
the
a. Notice language
The Notice posted in the laboratory reads;
IF THE UNION GETS IN and CALLS A STRIKE what would you and
your family do if you were faced with bills incurred during a strike!
Economic Strikers Get. . . .
NO pay checks
NO unemployment compensation
NO job protection if replaced
Vote NO
It is the “No job protection if replaced” portion of the notice that the Government alleges is an inaccurate statement of the law and violates the Act.
Laboratory technicians Vicki Claassen (Claassen) and McCaslen testified the notice was posted in the laboratory in May 2007, with Claassen specifying it was posted on “our dry erase board in the hall, in the walkway of the lab right when you walk in.” Other flyers addressing strikes were also posted along with the above notice.
b. Company’s evidence on the notice
The Company acknowledges it placed a one-page poster in
the laboratory area entitled, “If the
2.
Discussion and conclusions regarding the notice
It is undisputed the Company posted a notice in a prominent place in its laboratory department for a day or so in May 2007, that stated in part; “Economic Strikers Get . . . No job protection if replaced.” The Government argues this posting, on its face, unlawfully conveys to employees the threatening message that should they select union representation, and should that representation lead to an economic strike, they would have “No job protection if replaced.” The Government acknowledges that an employer, such as the Company herein, may address the subject of striker replacement of economic strikers without fully detailing their protected rights so long as the employer does not threaten that as a result of a strike employees will be deprived of their rights in a manner inconsistent with established Board law. The Government contends the Company has stepped outside what it may lawfully say and made an unlawful threat herein.
The Company contends the permissibility of its assertion in the posted notice is supported by longstanding Board precedent. The Company asserts it does not violate the Act by truthfully informing employees they are subject to permanent replacement in the event of an economic strike. The Company further asserts it is not required to fully detail the protections an economic striker may have when addressing striker replacements so long as it does not threaten that as a result of a strike employees will be deprived of their rights in a manner inconsistent with Board law. The Company argues no such unlawful statements were set forth in the posting at issue.
Section 8(c) of the Act permits an employer to make predictions regarding the consequences of union representation, including strikes, provided its remarks are not accompanied by a threat of reprisal or force or promise of benefit. Eagle Comtronics, Inc., 263 NLRB 515 (1982), is the leading case defining the extent of an employer’s obligation, on informing employees of the consequences of an economic strike, that may result in their being replaced or incurring other hardships. Stated differently, the Board in Eagle Comtronics, Inc., considered the extent of an employer’s obligation (on informing employees that they may be permanently replaced or suffer other consequences in an economic strike) to provide an accurate picture of employee rights under Laidlaw.8 In Eagle Comtronics, Inc., supra at 515–516, the Board held:
The issue posed in this case is the degree of detail required of an employer who informs employees that they are subject to replacement in the event of an economic strike. It is well established that, when employees engage in an economic strike, they may be permanently replaced.5 Of course, ‘permanent replacement’ does not mean that a striking employee is deprived of all rights. Specifically, striking employees retain the right to make unconditional offers of reinstatement, to be reinstated upon such offers if positions are available, and to be placed on a preferential hiring list upon such offers if positions are not available at the time of the offer.6 However, the Board has long held that an employer does not violate the Act by truthfully informing employees that they are subject to permanent replacement in the event of an economic strike. The Board has held that such comments do not constitute impermissible threats under Section 8(a)(1), or objectionable conduct in an election.7 Unless the statement may be fairly understood as a threat of reprisal against employees or is explicitly coupled with such threats, it is protected by Section 8(c) of the Act. Therefore, we conclude that an employer may address the subject of striker replacement without fully detailing the protections enumerated in Laidlaw, so long as it does not threaten that, as a result of a strike, employees will be deprived of their rights in a manner inconsistent with those detailed in Laidlaw. To hold otherwise would place an unwarranted burden on an employer to explicate all the possible consequences of being an economic striker. This we shall not do. As long as an employer’s statements on job status after a strike are consistent with the law, they cannot be characterized as restraining or coercing employees in the exercise of their rights under the Act.8 [Footnotes omitted.]
The Board in Unifirst Corp., 335 NLRB 706 (2001), further discussed an employer’s rights (free speech) and its obligation to present accurate, though not complete, information when addressing the rights of economic strikers by stating “an employer may, for example, inform employees that they ‘could’ be permanently replaced, without telling them that they would retain employment rights.” The Board in Unifirst Corp. went on to note:
Further, Eagle Comtronics by its own terms applies to statements that are unaccompanied by threats.5 The decision articulates the Board’s policy of resolving in the employer’s favor any ambiguity occasioned by a failure to articulate employees’ continued employment rights when informing them about permanent replacement in the context of an economic strike. Where, however, ambiguous comments about striker replacement are part and parcel of a threat of retaliation for choosing union representation. . . . any ambiguity should be resolved against the employer. [Footnotes and citation omitted.]
So long as an employer’s statements on job status after an economic strike are consistent with the law, even thought all rights are not fully explained, such statements are permissible and do not violate the Act. River’s Bend Health & Rehabilitation Services, 350 NLRB No. 16 (2007).
I find, in agreement with the Government, the Company’s statement that if the employees selected union representation which led to an economic strike they would have “NO job protection if replaced” cannot be reconciled with the employees’ rights under Laidlaw. There is no question but that the Company may address economic strikes and striker replacement without outlining in detail each and every right an economic a striker may have, but it may not, as is the case here, threaten they have “no” job protection if replaced. Employees would have, for example, preferential recall, rehire and reinstatement rights which certainly constitutes some job “protection.” The Company’s poster clearly conveys to the ordinary employee that if he or she engages in an economic strike and is replaced the employee has no job protection whatsoever. Accordingly, I find the Company threatened employees they would receive no job protection if they engaged in an economic strike in violation Section 8(a)(1) of the Act.
I reject the Company’s contention that because the poster in question was just one of many it provided concerning economic strikes and striker rights that overall the Company conveyed accurate information to its employees regarding economic strikes. While there is no contention that other of the Company’s postings or Vice President Tolsma’s Power Point presentation on strikes exceeded the bounds of the permissible such does not somehow negate the threat contained in the posting at issue.
C. The Interrogation
1. Complaint allegation
It is alleged at paragraph 5(b) of the complaint that on or about May 22, 2007, Company Consultant Dellinger, interrogated employees regarding how they intended to vote in the upcoming Union election.
a. The Government’s evidence regarding the interrogation
Employee Young testified that on May 22, 2007, Consultant Dellinger came into the microbiology laboratory around 3 p.m. where she and co-worker Claassen were. According to Young, Dellinger asked “how we were doing with all this stuff.” Young responded it really wasn’t any concern to her. Young said Consultant Dellinger commented “Well, you have friends here that you care about.” Young acknowledged she did and said “Yes, so obviously I will vote how they want me to vote.” Young testified that as Dellinger left the room she commented people could not even look her in the eye anymore.
Claassen recalled Dellinger asking she and Young “do you guys have your minds made up about this?” Claassen responded she was unsure. Claassen testified she assumed what Dellinger meant by her question so she told Dellinger she was “taking all the information in right now.” Claassen testified Young said the results would not affect her since she would not be there so she would just vote as her friends wanted her to.
b. Company’s evidence regarding the interrogation
Consultant Dellinger said she visited the laboratory on a daily basis in the month of May 2007. She did so to answer any questions the employees might have, explaining, “if they had any questions about what was going on, that we could address those right away.” On her May 22, 2007 visit, she spoke with employees Young and Claassen. Dellinger could not recall exactly what was said but added she was “uncomfortable” on that occasion because it was “really the first that I’d been in to have a direct conversation with a person in the lab and could not gain eye contact.” Dellinger denied asking any employee how they may vote in the union election. Dellinger explained she had over 20-years experience in human relations and was very careful when she spoke with employees and followed written advice from the Company’s lawyers. Dellinger further explained she had been involved in other union type activities and knew that in her position she had to be very careful what she said to employees. Dellinger said that on one occasion in the laboratory she told a laboratory employee she could not ask how the employee was going to vote and did not want to know but she needed to make sure all questions of the employees had been answered.
2.
Discussion and conclusions
I credit the essentially mutually corroborative testimony of Young and Claassen regarding the May 22, 2007 meeting, which Dellinger acknowledged, including the fact the employees would not make eye contact with her making her uncomfortable. I am also mindful Dellinger could not recall specifics of her exchange with the employees on the occasion. I find Dellinger inquired of Young and Claassen how they were doing with all this stuff and if they had their minds made up about this.
The Company contends Dellinger’s inquiry, even if made, was nothing more than communication protected by Section 8(c) of the Act. The Company contends neither the words themselves nor the context in which they were uttered suggest an element of coercion or interference. Simply stated the Company asserts the Section 8(c) protected and uncoercive comments of Dellinger, as attributed to her by Young and Claassen, can not constitute an unfair labor practice.
The Government, on the other hand, argues that asking employees if they have their minds made up may appear on the surface to be less intrusive than asking them how they are going to vote, but, that the net intent and effect are the same. The Government asserts the overall circumstances herein makes clear the questioning by Dellinger, as credited above, tends to restrain, coerce and/or interfere with employees’ rights guaranteed by the Act.
I note certain guiding principles before I address this allegation of interrogation. Interrogation is not, by itself, a per se violation of Section 8(a)(1) of the Act. The test for determining the legality of employee interrogation regarding union sympathies is whether under all the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed employees by the Act. Under this totality of circumstances approach consideration is given to; whether the interrogated employee is an open or active supporter of the union, the background surrounding the interrogation, the nature and purpose of the information sought, the identity of the questioner, the place and/or method of the interrogation, and the truthfulness of any reply by the questioned employee. Rossmore House, 269 NLRB 1176, 1177 (1984), enfd. sub. nom. H.E.R.E Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). The above factors are not to be mechanically applied but rather are to be useful indicia that serve as a starting point for assessing the totality of the circumstances. That the interrogation might be courteous and low keyed instead of boisterous, rude, and profane does not alter the case.
I am fully persuaded Dellinger’s questioning of Young and
Claassen on May 22, 2007, constituted unlawful interrogation that tended to
restrain, coerce and interfere with the employees’ protected rights. It is clear Dellinger’s questions concerned
the
D.
May 30 Meeting Conducted by Supervisor Wood
1. Complaint allegation
It is alleged at paragraph 5(c) of the complaint that on May 30, 2007, during a meeting with laboratory employees, Supervisor Wood, promised employees the Company would be able to resolve any problems employees had with their current working conditions if they abandoned their pursuit of Union representation.
a. Government’s evidence regarding the meeting
Laboratory Technicians Claassen and McCaslen were present at and testified regarding the May 30 laboratory employee meeting conducted by Supervisor Wood. According to Claassen, Wood first explained the laboratory was understaffed and his first goal would be to have it fully staffed. Second, Wood explained that with the change in supervision in the laboratory department the employees had not had a chance to know or observe his supervisory skills or procedures. Claassen said Supervisor Wood asked the employees to give him 6 months and if after 6 months they were not satisfied with the way things were going “then [they] could go back to the Union.”
McCaslen testified it was the first time an immediate level supervisor had sat down with the employees “and explained the economic hardships the Company was going through with the change in the market.” McCaslen further testified:
He explained; you know, that the Company was trying and that they were making changes by moving him into the lab, and that he felt he could do an adequate job of making these changes if we gave him more time, because, at that time he’d only been in there a few weeks and again expressed his concerns that he felt we should hold off on the union election. I think he asked for maybe like a six month time frame.
b. Company’s evidence on the meeting
Supervisor Wood testified that when he spoke with the laboratory employees on May 30, 2007, he simply wanted to explain to them what was going to happen the next day at the union election. Wood testified, “I wanted everyone to be clear and understand what the process was and how it was actually going to physically work.” Wood said he also spoke about his being placed in the laboratory and told the laboratory employees about the economic conditions at the Company as he understood them. Wood said those were the “main points” of his speech. Wood specifically denied telling the employees they would be able to resolve any problems they had with their current working conditions if they abandoned their pursuit of union representation. According to Wood 11 or 12 of the laboratory technicians were present for the meeting. Wood utilized “bullet point” type notes in giving his talk to the employees. Wood could not recall if staffing levels came up in the meeting but acknowledged getting proper coverage in the laboratory had been a problem for him.
2.
Discussion and conclusions
I credit Claassen’s and McCaslen’s testimony regarding the May 30, 2007, laboratory employee meeting conducted by Supervisor Wood. I do so for a number of reasons. First, they both appeared to be telling the truth as best they could recall. Second, their testimony was essentially the same. Third, Supervisor Wood, while unable to remember if staffing was mentioned in the meeting clearly recalled staffing was a major concern for him during the short time he had been in charge of the laboratory. In light of the fact staffing was of such concern for Wood, it is highly likely he discussed it at the meeting as testified to by Claassen. Fourth, Wood did not deny the specific comments about the meeting that Claassen and McCaslen attributed to him.
The Government contends Supervisor Wood’s comments violate the Act because he unlawfully promised to resolve the employees current working conditions if the employees abandoned their pursuit of union representation. The Company contends the comments, even if made by Wood, were simply generalized expressions asking for “more time” or “another chance” and were within the limits of permissible campaign propaganda.
Generalized expressions by employers are legally permissible in union campaigns. The Board in National Micronectics, 277 NLRB 993 (1985) found no violation of the Act where the employer confessed it had neglected matters in the past and asked for a second change to make things better. The Board held such to be generalized expressions (“another chance” “more time”) and permissible. In Noah’s New York Bagels, 324 NLRB 266 (1997), the Board found no violation where the employer’s president, in part, in a speech one day before an election, said the employer had “rapid growth” and “clearly made . . . mistakes” but suggested “the best way to overcome our mistakes is for us to work together, without the intervention of a third party . . . please vote to give us a second chance to show we can do it,” and added, if they didn’t meet the employees expectations the union would be there.
I find Wood’s comments exceeded permissible generalized expressions. Wood noted the department was unstaffed and explained his first goal would be to fully staff the department. Simply stated Wood clearly made a promise to remedy a specific problem which was understaffing. Wood pointed out to the employees that other specific changes had recently been made, namely, that he had been moved into the department as the new supervisor. He indicated he felt he could do an adequate job of carrying out other changes as well. Wood’s comments, along with specific chances noted or promised, violated Section 8(a)(1) of the Act as promises to resolve employee problems if they abandoned their pursuit of union representation.
E. Young’s
Accelerated Departure
1. Complaint allegation
It is alleged at paragraph 6 of the complaint the Company, on or about May 27, 2007, accelerated the termination of employee Heidi Young, who had given notice of her intent to resign her employment effective on June 6, 2007, because she engaged in activities on behalf of the Union and to discourage employees from engaging in those activities and to prevent Young from voting in an upcoming election for May 31, 2007, in Case 18–RC–17500. It is alleged the Company’s actions violate Section 8(a)(1) and (3) of the Act.
a. The Government’s evidence regarding Young’s departure
Young, who holds a Masters Degree in Forensic Science, did
some of her undergraduate studies at a local college in
In April 2007, Young made application for full time employment with the Company and was interviewed and hired by QA/QC Manager Ostendorf. Young explained during the interview that if job opportunities came about for something forensically related she would accept such an offer. In fact Young told Ostendorf during her interview she actually had a job interview scheduled in her field of expertise.
Young’s first day of full-time employment with the Company
was April 9, 2007. On or about April 25,
2007, Young was offered and accepted employment with the Wisconsin State Crime
Laboratory as a DNA Analyst in
On about April 26, 2007, Young notified QA/QC Manager Ostendorf of her acceptance of employment elsewhere and advised Ostendorf her last day of employment with the Company would be June 6, 2007. Young testified Ostendorf at first seemed “flustered” saying “no, you cannot leave” but made no comment about her proposed June 6, departure date. Young testified in fact no one in management, between late April and May 23, 2007, mentioned her proposed departure date of June 6.
During her tenure at the Company, Young served as a laboratory technician in the microbiology section of the Quality Assurance Quality Control Department where she performed tests to ensure bacteria was not present or growing in the gelatin produced by the Company. Of the 12 employees in the laboratory, Young was a friend of co-laboratory technician McCaslen prior to working at the Company and became a friend of laboratory technician Claassen at work. The three technicians ate together and took breaks together. Young testified they discussed work complaints two or three times per week and that Supervisor Peter had been present in the area when they had some of their work related discussions.
Young testified she and McCaslen were working together on May 23, 2007, but she [Young] was “very frustrated” doing her job that day. Young explained her frustration resulted from the fact a co-worker, Trish Peterson, “just kept following [her] around like [she] didn’t know how to do stuff.” While still frustrated someone, and Young wasn’t sure who at the time, asked how her day was going. Young responded, “I can’t wait to get out of here.” Young was so “flustered” she did not even see who asked the question but later learned it was Consultant Dellinger. Young did not hear Dellinger make any response and she could not recall using any profanity in the exchange. Young acknowledged, however, it was possible she said “hell” that she was “frustrated.” Young went on to acknowledge “when I’m mad, I . . . tend to use profanity.”
Laboratory technician McCaslen testified about the occasion when Young had “an alleged outburst” in the laboratory. McCaslen testified Young had just returned from a bathroom break “pretty upset because of a confrontation she had had with a fellow co-worker, Trish Peterson.” McCaslen tried to calm Young down “a little bit” when Consultant Dellinger came into the area and asked how it was going. McCaslen said she was too busy to respond but that Young replied “I can’t wait to get out of here.” Dellinger responded “well that’s too bad” and left.
Coworker Claassen testified Young said “I’m so frustrated, I can’t wait to get out of this place.” Claassen first testified no profanity was used but on cross-examination said she could not recall if an obscenity was used but that Young could have.
Later that same day [May 23] Consultant Dellinger came back to the laboratory and asked Young to accompany her to Supervisor Wood’s office. Those present in Wood’s office were Wood, Young and Dellinger. Young testified Dellinger said “[w]e are going to accommodate your needs, and your last day will be May 27th.” Young asked why, and asked if it was because the Company did not want her to vote. According to Young, Dellinger responded only with “O.” Young told them she was not stupid and told Consultant Dellinger she was “screwing her/lab employees over” and the Company “didn’t care about their employees whatsoever.” Young said a “lot” more but could not recall what else she said. Young did request to speak with Supervisor Wood alone. Dellinger left to see if a check had been cut for Young. Young told Wood she was sorry and Wood said he did not know what was going on and had no control over it.
McCaslen testified she was kind of nosey and watched as Young went to Wood’s office and as Young returned from the office. McCaslen said Young was “beet red and crying” and they then discussed what had taken place.
At about mid-afternoon that same day Young asked Supervisor Wood if she should show for work on May 28, 2007, if she had not heard anything by the end of her current work shift. However, at approximately 4 p.m. that afternoon Young was given a hand delivered letter from Consultant Dellinger that stated:
As discussed, we have accepted your resignation as
tendered. Your last day at GELITA
When Young read the letter she became “very upset” and asked Supervisor Wood “to get Kim Dellinger down here so I could talk to her and Desiree McCaslen would be present with me in this meeting.” When Consultant Dellinger arrived Young told her “this letter is a lie.” Dellinger asked how and Young told her she did not accept resignation on May 27 that she was being forced into that date. Young told Dellinger she had never been so “disrespected” by a human resources department.
McCaslen testified she was present as Young “pleaded her case” with Wood and Dellinger, and, when Young expressed her desire to work until June 6 because she did not want to sit at home. According to McCaslen, Supervisor Wood and Consultant Dellinger, both explained to Young that most companies paid employees off when they gave notice but that was their last day at work. McCaslen told them she had been there five years and had never seen it done that way. Young asked if she would have to work that Saturday and Sunday and was told she would unless she could get someone to cover for her.
McCaslen testified she was one of the “biggest complainers” in the laboratory department because she “always felt overworked or underappreciated.” McCaslen said she complained on a daily basis to Supervisor Peter but was never disciplined for doing so. McCaslen explained, for example, that when Supervisor Peter gave out pay checks each Friday she always said, “Oh, please tell me that’s my pink slip.” McCaslen said Peter thought her comments to be a joke “and between us it kind of was.” She also said when Supervisor Peter would ask how things were going she would say, “I think I’m going to quit right now and you can finish this for me.” Nothing was ever done to McCaslen for her comments.
b. The Company’s evidence regarding Young’s departure
Consultant Dellinger testified she did not know Young personally
but only as an employee of the Company who started full time with the Company
April 9, 2007. Dellinger was on vacation
when Young submitted her resignation with her proposed departure date of June
6, 2007. After returning from vacation
Dellinger talked with Young about her newly accepted position in
Dellinger spoke with Young in the laboratory on May 23, 2007, and noted employee McCaslen also was in the area. Dellinger initiated the conversation by asking how things were going. According to Dellinger, Young responded that “she couldn’t wait to get the hell out of here.” Dellinger said she recalled Young’s exact words because Young “was very frustrated . . . you could tell in her face and in her actions, I mean, that she was frustrated and upset.” Dellinger was “taken aback” by Young’s comments.
After the encounter in the laboratory department Dellinger telephoned Vice President Tolsma and also spoke with Director Mayberry about Young’s comments. Dellinger said she spoke with her superiors because Young’s “frustration and . . . wanting to get away from there made [her] very concerned.” Dellinger also said she talked with her superiors because it was no secret that at the time they were “going through a union campaign” but that she “felt strongly that it was time to let Heidi [Young] go with the—with the attitude that she had displayed to me.” Dellinger explained that work performed by the laboratory technicians is very important to the Company because “[e]verything that goes out to our customers has to go through the laboratory to be tested.” Dellinger said the decision was a difficult one regarding whether to have Young leave earlier than requested “because we didn’t want it to be for any reason other than it was the right thing to do for the employee and for the Company.”
Dellinger said Tolsma and Mayberry were not generally involved in every disciplinary decision but this was one she did not wish to make on her own. The managers’ final decision was to accelerate Young’s resignation date, but to ensure she was treated fairly, the Company would pay Young through her requested June 6, 2007 date. Dellinger explained that when an employee was very frustrated and upset “[i]t just has a ripple effect out to all of the other people that you work with.” Dellinger said she wrote Young on May 24, 2007, at Young’s request, accepting her resignation.
Dellinger testified she never at any time observed Young
wearing Union buttons, pins, hats or anything that would indicate her support
for the Union nor did Young ever tell her she favored the
Vice President Tolsma testified he was in
Tolsma said it was not common practice, but the Company had, on occasion, accelerated the termination of other employees. Tolsma explained that about three years ago former Director of Information Technology, Joan Pyer, told him and her immediate supervisor, she could not work a certain way and he told her she was resigning with that being her last day. Tolsma said that when Vice President of Production, Carl Sitzman, resigned in January or February 2007, he granted Sitzman’s request to leave his employment early. Tolsma also testified about a situation that happened 4 or 5 years earlier involving Environmental Engineer James Haigh, who at the time was on a performance improvement plan. Tolsma said Haigh told him he could not work for his superior because his supervisor was not an engineer. Tolsma said he simply told Haigh “we’ll accept your resignation, and your last day is today.”
2. Discussion and conclusions
The Government contends the Company accelerated the termination date for Young, a valued employee with a strong work ethic, because of her concerted protected activity of making a statement to management that evinced prounion voting intentions, and to have her off the Company’s payroll and not eligible to vote in the Board conducted election for the laboratory employees.
The Company contends Young’s final day of work was accelerated not because of any union or concerted activity but simply because of her statement to a management official that she could not wait to get the hell out of the Company. The Company asserts it was only as a direct result of Young’s desire to leave as soon as possible that it elected to permit Young to do just that and was not based on animus towards the Union.
Before examining this case under the Board’s dual motivation test or analysis, it is helpful to determine exactly what Young said when she announced she could not wait to leave her employment with the Company. I find Young said, “I can’t wait to get the hell out of here” when asked by Consultant Dellinger on May 23, 2007, how her day was going. I am not unmindful that Young, McCaslen, and Claassen all could not recall Young using any profanity. However, Young said it was possible she said “hell” that she was “frustrated” and acknowledged that when she was “mad” she tended to use profanity. McCaslen said Young was “pretty upset” that morning because Young had a “confrontation” with a “coworker” and she, McCaslen, was trying to calm Young down “a little bit.” Although Claassen could not recall if Young used profanity she acknowledged Young could have. The evidence establishes and Young’s demeanor on the witness stand reinforces, a finding that Young was at times frustrated, upset, angry and in need of being calmed down a bit at work. When Young was upset, which appears to have been often, she admittedly used profanity. I am fully persuaded she used the word “hell” when she said she could not wait to get out of the Company. I turn now to the dual motive analysis.
To establish a violation of Section 8(a)(3) of the Act, the government must prove, by a preponderance of the evidence, that an individual’s protected activity was a motivating factor in the employer’s action. Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Once the government makes this showing, the burden of persuasion then shifts to the employer to prove its affirmative defense that it would have taken the same action even in the absence of the protected conduct. To sustain its burden the government must show that the employee was engaged in protected activity, that the employer was aware of that activity, that the activity or the employee’s union affiliation was a substantial or motivating reason for the employer’s action, and, there was a causal connection between the employer’s animus and its challenged conduct or decision. The government may meet its Wright Line, supra, burden with evidence short of direct evidence of motivation, i.e., inferential evidence arising from a variety of circumstances such as union animus, timing or pretext may sustain the government’s burden. Furthermore, it may be found that where an employer’s proffered non-discriminatory motivational explanation is false, even in the absence of direct evidence of motivation, the trier of fact may infer unlawful motivation. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Fluor Daniel, Inc., 304 NLRB 970 (1991). Motivation of union animus may be inferred from the record as a whole, where an employer’s proffered explanation is implausible or a combination of factors circumstantially support such inference. Union Tribune Co. v. NLRB, 1 F.3d 486, 490–492 (7th Cir. 1993). Direct evidence of union animus is not required to support such inference. NLRB v. 50-White Freight Lines, Inc., 969 F.2d 401 (7th Cir. 1992). If it is found an employer’s actions are pretextual, that is, either false or not relied upon, the employer fails by definition to show it would have taken the same action in the absence of the protected conduct and it is unnecessary to perform the second part of the Wright Line analysis. Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982), Metropolitan Transportation Services, 351 NLRB No. 43, slip op. at 3 (2007).
The first burden the Government must meet is to establish
Young engaged in protected activity.
Young, McCaslen and Claassen talked two or three times per week about
work related complaints sometimes in the presence of Supervisor Peter. McCaslen contacted the
Young’s termination date was accelerated one day after she was unlawfully interrogated by Dellinger revealing her pro-Union inclinations. Specifically the Company raised no objection to Young’s proposed June 6, 2007, departure date from the time she announced her resignation on April 26, 2007, until one day after Dellinger unlawfully interrogated her on May 22, 2007, at which time Young revealed her apparent support for the Union.
The Company’s contention Young’s comment “she couldn’t wait to get the hell out of here” brought about her accelerated departure as an accommodation to her, and for no other reason, does not withstand examination. The Company seized upon Young’s comment, as a pretext, to accelerate her departure date so as to make Young ineligible to vote in the Board conducted election. First, others complained about working conditions but had no action taken against them for doing so. Laboratory employee McCaslen admitted she was one of the “biggest complainers” in the laboratory department complaining daily as “overworked or under appreciated,” but was never disciplined for her complaints. McCaslen told Supervisor Peter, on occasions when he handed out payroll checks, to please tell her it was her pink slip and in response to his inquiries about how things were going she would tell him she was going to quit and he could finish her work. Peter, as her laboratory supervisor, took no action against McCaslen for her statements of dissatisfaction, yet the Company seized upon Young’s one flare-up and accelerated her departure date. I note the Company had no policy regarding profanity in the work place on which it might attempt to justify its offense at Young’s use of the term “hell” in her comments.
The Company had no established past practice of accelerating resigning employees’ proposed departure dates. Vice President Tolsma testified it was not a common practice to accelerate dates but nevertheless gave three examples where departure dates were accelerated. One example was of a former Director of Information Technology who stated she could not work a certain way and was told by Tolsma she was resigning immediately. The person was a management official not a laboratory employee and she was in essence fired by being told she was resigning immediately. The second example involved a Vice President of Production who specifically requested an accelerated departure date. The third example involved an environmental engineer, who was on a performance improvement plan, who told Tolsma he could not work for his assigned supervisor, because the supervisor was not an engineer. Tolsma accepted his resignation that day. These are not analogous to Young’s situation nor do they offer any justification for the Company’s actions against Young rather it simply highlights the pretextual nature of the Company’s acceleration of Young’s departure date.
The pretextural nature of the Company’s actions toward Young is further demonstrated by the fact Consultant Dellinger had discussions with the highest levels of management, even those outside the country, but failed to consult with or provide early notice to Young’s immediate Supervisor, Wood. Dellinger acknowledged that Vice President Tolsma and Director Mayberry were not generally involved in disciplinary decisions but she “felt strongly that it was time to let Heidi [Young] go with . . . the attitude that she displayed to me” and she said it was no secret about the Company “going through a union campaign.” It appears quite clear Dellinger knew she was not following past practice involving this highly educated laboratory employee but also knew it was time to remove Young from the payroll in light of the upcoming union election.
Further evidence of the pretextural nature of the Company’s actions is demonstrated by Dellinger’s stated concern that Young’s frustrated and upsetting comments would send “a ripple effect out to all of the people” she worked with. I note after Young had been told of her accelerated departure date she was asked to work, unsupervised, for two additional workdays. If the Company truly was concerned that Young’s continued presence in the laboratory would be detrimental to the workforce it would not have insisted she work additional days or, if not, find on her own a replacement for herself those additional workdays. The laboratory was understaffed at the time.
I find the Company accelerated Young’s departure date for unlawfully motivated reasons violating Section 8(a)(3) of the Act. The Government’s prima facie case has not been rebutted, as the reasons advanced by the Company are pretextual.
Conclusions of Law
1. By, since on or about May 2007, interrogating its employees about their union activities and support for the Union; promising employees to resolve any problems employees had with their current working conditions if they abandoned their pursuit of union representation; and, threatening employees they would receive no job protection if they engaged in economic strikes on behalf of the Union, should employees select the Union to represent them, the Company violated Section 8(a)(1) of the Act. By on May 27, 2007, accelerating the termination of employee Heidi Young, who had given notice of her intent to resign her employment with the Company on June 6, 2007, the Company violated Section 8(a)(3) and (1) of the Act.
2. In as much as
these unfair labor practice violations are coextensive with the
3. The ballot of
Heidi Young should be opened and counted. A new tally of ballots should be
prepared and, depending on the outcome of the election, an appropriate certification
should issue. If the outcome shows that
a majority of the valid votes counted is in favor of union representation the
Remedy
Having found the Company has engaged in certain unfair labor practices, I find it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Although the Company discriminatorily accelerated the termination date of its employee Heidi Young from June 6 to May 27, 2007, I shall not recommend that she be made whole or reinstated because she was paid through her voluntary resignation date and voluntarily left the Company for other sought after employment. I do, however, recommend the Company be ordered, within 14 days of the Board’s Order, to remove from its files any reference to the unlawful acceleration of Young’s departure date, and, within 3 days thereafter, notify her in writing it has done so. I also recommend the Company be ordered, within 14 days after service by the Region, to post an appropriate “Notice to Employees” in order that employees may be apprised of their rights under the Act and the Company’s obligation to remedy its unfair labor practices.
With respect to the Representation case, I recommend that
a revised tally of ballots be issued after counting the ballot to be
opened. In the event that a majority of
the votes are for the
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended9
ORDER
The Company, Gelita USA Inc., Sergeant Bluff,
1. Cease and desist from
(a) Interrogating its employees about their union activities and support for the Union; promising employees to resolve any problems employees had with their current working conditions if they abandoned their pursuit of union representation; and, threatening employees they would receive no job protection if they engaged in economic strikes on behalf of the Union, should employees select the Union to represent them.
(b) Accelerating the termination date for employees because they engaged in union and/or other protected activities and to prevent them from voting in a scheduled Board conducted representation election.
(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days of the Board’s Order, remove from its files any reference to its acceleration of Heidi Young’s departure date from the Company, and, within 3 days thereafter, notify her in writing that this has been done and that such will not be used against her in any manner.
(b) Within 14 days after service by the Regional Director
of Region 18 of the National Labor Relations Board, post at its Sergeant Bluff,
(c) Within 21 days after service by the Region, file with the Regional Director for Region 18 of the National Labor Relations Board sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Company has taken to comply.
It is further ordered that the proceeding in Case 18–RC–17500 be severed and remanded to the Regional Director for Region 18 for further action consistent with this decision.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations
Board has found that we violated Federal labor law and has ordered us to post
and obey this notice.
federal law gives you
the right to
Form, join, or assist a
union
Choose representatives to
bargain with us on your behalf
Act together with other
employees for your benefit and protection
Choose not to engage in any
of these protected activities.
We will not
interrogate our employees about their union activities and/or support for
United Food and Commercial Workers Union, Local 1142 or any other labor
organization.
We will not
promise our employees we would be able to resolve any problems employees had
with their current working conditions if they abandoned their pursuit of union
representation.
We will not threaten
our employees that they would receive no job protection if they engaged in
economic strikes on behalf of the Union, should employees select the
We will not
accelerate the termination date of employees, who have tendered their
resignations, because of their union or concerted protected activities or to
prevent them from voting in a Board conducted election.
We will not
in any like or related manner interfere with, restrain or coerce employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
We will, within 14 days of the Board’s Order, remove from our files any reference to our acceleration of Heidi Young’s departure date from our Company and, we will, within 3 days thereafter, notify her in writing that this has been done and that her accelerated departure will not be used against her in any manner.
Gelita Usa Inc.
1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act.
2 In determining that the Respondent violated Sec. 8(a)(3), the judge found that the General Counsel established that Young’s union activity was a motivating factor in Respondent’s acceleration of her termination date, as shown by: (1) Young’s union activity; (2) Respondent’s knowledge of that activity; (3) Respondent’s antiunion animus;